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NY Appeals Court finds "Foreign Object" Revives Medical Malpractice Lawsuit

On June 10, 2015, the New York Court of Appeals ruled that a four inch piece of a catheter left inside a patient’s heart in 1986, and not discovered for more than 20 years, qualifies as a “foreign object” under the tolling provision of New York’s medical malpractice statute of limitations and reinstated the plaintiff, Adam Walton’s case. Our newest attorney at The Perecman Firm, Zachary Perecman, wrote his New York Law Review Case Comment about the trial court’s 2012 decision, arguing that the case had been wrongly decided. Mr. Perecman conducted extensive research and drafted a detailed discussion of the case law governing the foreign object rule and the legislative history surrounding the enactment of the foreign object exception to the medical malpractice statute of limitations. Many of the reasons the Court of Appeals presented for their decision were right in line with Mr. Perecman’s arguments in his Case Comment.

The “foreign object” provision to New York’s medical malpractice statute of limitations allows for a plaintiff to file a lawsuit within one year of discovery of, or when they should have reasonably discovered, a “foreign object” in their body. Fixation devices are exempt from the statute.

Adam Walton had heart surgery in 1986 at Strong Memorial Hospital in Rochester, NY to correct a congenital defect. A piece of the catheter that was placed in his heart during the surgery broke off and remained in his heart for over 20 years and was not discovered until December 2008 after many years of medical complications allegedly suffered as a result of the piece of catheter. Walton filed a malpractice suit within one year of discovering the catheter, but in 2012 the New York Supreme Court in Erie County dismissed the case, finding that the catheter was not a “foreign object.” In 2014, the Appellate Division affirmed the trial court’s dismissal, finding that the catheter was a “fixation device” that was intentionally placed inside Walton’s heart.

On Wednesday, the Court of Appeals unanimously reversed the lower court’s decision and revived Walton’s malpractice suit. The Court found that the piece of catheter was not a “fixation device,” as the Hospital argued and the appellate court decided, because it does not serve a “securing” or “supporting” function, like stents and sutures in previous cases. The Court also determined that the four inch piece of catheter qualifies as a foreign object since the piece of catheter “served no purpose whatsoever” and was “therapeutically useless and potentially dangerous surgical paraphernalia lodged in his body.” Walton v. Strong Mem. Hosp, 2015 N.Y. Slip Op. 04786 (June 10, 2015).


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